In December last year, the Court of Appeal delivered its judgment in Boulton v R [2014] VSCA 342. This was the first ever guideline judgment delivered under Part 2AA of the Sentencing Act 1991 (Vic), which allows the Court of Appeal to go beyond the specific circumstances of a case and set out broad principles that should be applied in sentencing. This case considered when and how Community Correction Orders should be imposed. The Sentencing Advisory Council last year noted that CCOs were not being used as widely as parliament had expected, while sentences of imprisonment had increased. Significantly, the Court of Appeal unanimously held “the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her” and should be considered as an alternative to imprisonment. Rejecting an argument that jail should be the primary way to achieve the sentencing purpose of punishment, the Court said “a CCO … is punitive in nature, and is intended — and expected — to operative punitively for every day of its operation.”
Human rights law: essential or counter-cultural?
Writing in The Guardian UK’s Studying Law section, Rabah Kherbane says “every aspiring lawyer should study human rights law”. While it is “often wrongly assumed that human rights law is specifically for those who want careers in human rights”, he argues that “irrespective of your area of practice, human rights are relevant in domestic courts and domestic law”. However, Loyola University’s Professor William P Quigley warns that maintaining a commitment to human rights is hard work: “It pains me to say it, but justice is a counter-cultural value in our legal profession. … The actual message from law school and on throughout the entire legal career is that justice work, if done at all, is done in the margins or after the real legal work is done.” Studying human rights as a discrete subject is not required for admission to practice law in Australia.
New Justice Nettle stirs judicial gender balance debate
The High Court held a ceremonial sitting in Canberra yesterday to mark the appointment of Justice Geoffrey Nettle to the bench. He had formerly been a Justice of the Victorian Court of Appeal. The appointment was made after Justice Susan Crennan chose to retire five months ahead of the Constitutional age limit. While Justice Nettle is regarded as “one of the intellectual leaders of the profession” and “a non-political choice”, the shift in gender balance on the court has been questioned. Writing in the Canberra Times, Professor Kim Rubenstein called for a review of how judicial appointments are made. Rubenstein argues the “backdoor system of affirming men in the top posts” undermines the High Court because we should “ensure that the diversity of our community is reflected in the High Court of Australia and gender is one of the meritorious matters that must be considered in the appointment process”. However, Attorney-General George Brandis wound back reforms that made the judicial appointment process more transparent, and would not commit to promoting diversity in the judiciary. There are now five men and two women on the High Court. Justice Kenneth Hayne will retire later this year.
Tasmania to restore defamation “forum shopping”
Under the division of powers, defamation is a matter for the States, and historically, the law was different in each jurisdiction. With the rise of national (and international) media and communications, this led to “forum shopping” in which plaintiffs could choose to sue in the State with the most plaintiff-friendly law. In order to achieve nationally consistent laws, the States agreed to implement uniform legislation, with an identical Defamation Act 2005 passed in each State. Now, Tasmania is threatening to abandon the national scheme by allowing big corporations to sue individuals. Critics say this will make Hobart the “defamation capital of Australia” by again allowing forum-shopping. The proposed change is part of a broader suite of Tasmanian reforms designed to crack down on anti-forestry protesters, but which may have much broader impacts.
New government, new portfolios
At the election held on 29 November 2014, the Victorian electorate voted for a change of government. The new premier, Labor’s Daniel Andrews, immediately made significant structural changes to the executive. There will now be just nine government departments, each covering multiple portfolios. This is designed to improve efficiency, but the new “super-departments” might be difficult to manage. He also created two new portfolios within the Department of Premier and Cabinet. Martin Foley is Australia’s first Minister for Equality, focussing on LGBTI issues, and Fiona Richardson is the first Minister for the Prevention of Family Violence. These new portfolios suggest the government’s priorities for the next three years. However, they might face problems passing bills through the Legislative Council, where the balance of power is held by five “micro-party” MLCs with vastly different interests.
Some laws are bananas
Bananas should not be too bendy. Diabetics are banned from driving. Eggs cannot be sold by the dozen. Quiz: crazy European Union law, or made up law?
Voters choose convenience over democracy sausages
The Victorian State election is still four days away, but more than 500,000 people have already voted. The Victorian Electoral Commission says a surge in postal and early voting it is possible a quarter of eligible voters have cast their ballot before election day. “Convenience voting” is designed to improve democratic participation by ensuring citizens aren’t prevented from voting by illness, work commitments or travel. However, while convenience voting has rapidly increased over the last decade, VEC statistics show voter participation hasn’t improved. The University of Queensland’s Graeme Orr is concerned that this trend towards convenience voting is changing our democratic culture: “[T]here is a baby and bathwater dimension to the relationship between convenience voting and the role of polling day. If delivering convenience voting becomes our main goal, polling day will be diluted. … Polling in person on election day is more than an empty ritual; it may be a richer form of participation. There is an important distinction—both symbolic and real—between polling day as a communal event, and the elongated process by which individuals vote over many days or weeks, ensconced in their own homes or pre-polling in electoral offices.” Indeed, early voters will not enjoy a “democracy sausage”—supporting schools and community groups—as part of their voting experience. In addition, convenience voting may have an impact on the outcome of elections, as votes are case before the parties have fully outlined their positions on key issues. (Teachers: the current issue of the AltLJ includes classroom activities based on Orr’s article.)
Grand juries in Missouri and (formerly) in Victoria
Protests have again erupted across the US, after a grand jury decided not to indict a white police officer over the shooting of an unarmed black man, Mike Brown, in Ferguson, Missouri. The grand jury process in Missouri requires 9 of 12 jurors to agree there is “probable cause” to indict the accused. This is similar to a committal in Victoria, in which a magistrate determines whether a prima facie case exists prior to the preparation of an indictment. Critics of the US grand jury system point out that they almost always result in prosecution—except when the accused is a police officer. Historically, Victoria had a very different grand jury system. Instead of weeding out weak cases, it was intended to ensure prosecutions could go ahead. Indictable prosecutions were brought in the name of the Attorney-General—a politician. To ensure that political corruption did not prevent prosecutions, private citizens could call for a grand jury of “not less than twenty-three men” to decide if the accused should be committed for trial. It was used 10 times before the independent DPP was established in 1983, removing the Attorney-General and the risk of political corruption from the process. The Victorian grand jury process was then effectively obsolete. Nevertheless, conspiracy theorist Brian Shaw was declared a vexatious litigant after unsuccessfully filing applications to summon more than 40 grand juries between 2001 and 2007. The grand jury process was then abolished by the Criminal Procedure Act 2009.
Life without parole breaches children’s rights: UN
In 1988, two NSW teenagers were sentenced to life imprisonment for rape and murder. At the time, they could apply for release after 10 years. However, the NSW Government repeatedly changed the law to ensure they were “cemented in jail and were never to be released”, in the words of then Premier Bob Carr. The Human Rights Law Centre took their case to the United Nations Human Rights Committee, making a number of arguments about the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory. Their three strongest arguments were: First, that “the imposition of a life sentence without the possibility of parole in respect of a juvenile offender is incompatible” with Article 10, paragraph 3, which states: “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” Second, that “the imposition of a life sentence [without parole] on a juvenile constitutes cruel, inhuman and/or degrading punishment” contrary to Article 7. And third, that sentencing the teenagers to an adult sentence without giving them an opportunity to show their rehabilitation was a breach of Article 24, which requires protection of children. The Committee agreed with these arguments at paragraph 7.7. The Australian Government now has 180 days to respond to the Committee’s findings. Daniel Webb of the HRLC argues that response needs to include amendment of the NSW sentencing law.
Lack of standing blocks VLAD challenge
The High Court recently handed down its judgment on a constitutional challenge to Queensland’s anti-bikie legislation. The case upheld part of the laws, but declined to rule on other parts. A control order scheme aimed at members of declared organisations was found not to infringe the separation of powers between the executive and the judiciary, because it still required courts to consider guilt or innocence in the ordinary way. However, the most controversial parts of the Queensland laws—in particular the Vicious Lawless Association Disestablishment Act 2013 (Qld)—were not considered by the Court because the applicant lacked standing to bring the case. The concept of legal standing is designed to keep hypothetical cases out of the system, but it can prevent test cases being run. Dr Binoy Kampmark of the Rule of Law Institute is highly critical of this aspect of the decision: “Significant in this case is the ruling against the plaintiff’s standing, suggesting a vital blow to public interest and civil liberty litigation. … It is hard to see what Kuczborski could have done [to gain standing] short of actually committing an act in violation of the VLAD laws, and being convicted as a result. One can only appeal after the fact. … Such a ruling places any efforts to challenge legislation that overreaches into the spheres of public life under question.”